Education Week staff writer Evie Blad explores some of the nonacademic issues that bear on students’ learning. Join her for insights, news, and analysis on a wide range of issues including school climate, student engagement, children’s well-being, and student behavior and discipline.

Leaders of the U.S. departments of Education and Justice have issued new guidance on how school leaders can ensure that discipline policies are drafted and applied in a manner that does not discriminate against racial or ethnic groups.

Leaders should also seek alternatives to "exclusionary" penalties like suspension and expulsion that rob students of valuable classroom time, often for nonviolent offenses, said U. S. Attorney General Eric Holder and U.S. Secretary of Education Arne Duncan, who were scheduled to discuss the guidance at an event this morning at at Frederick Douglass High School in Baltimore.

The new guidance clarifies how districts can meet their obligations under Title IV and Title VI of the federal Civil Rights Act of 1964, which relate to fair and nondiscriminatory treatment among schools and recipients of federal aid.

Intent and Application

Schools can violate the laws if they draft policies that unfairly target specific student groups in word or in application, the guidance says. For example, a dress code rule that targets a kind of clothing that school officials associate with a particular racial group without a legitimate educational justification for doing so.

Disciplinary policies, even those drafted without discriminatory intent, may also violate the federal laws if students from certain racial groups are disproportionately affected by them, an effect commonly known as "disparate impact," the guidance says. If students of one race are sanctioned at disproportionately higher rates under a given policy, educators should be prepared to demonstrate that the disciplinary measure is "necessary to meet an important educational goal" and that they have considered alternatives, the document says.

The guidance results from the work of the Supportive School Discipline Initiative, a collaboration that the two federal agencies launched in 2011 to address what's known as the "school-to-prison pipeline," the term critics use for policies that they say result in unnecessary and inappropriate referrals from schools to the criminal justice system. Advocates for school discipline reform have argued that such policies disproportionately impact minority racial and ethnic groups.

"A routine school disciplinary infraction should land a student in the principal's office, not in a police precinct," Holder said in a written statement. "This guidance will promote fair and effective disciplinary practices that will make schools safe, supportive, and inclusive for all students. By ensuring federal civil rights protections, offering alternatives to exclusionary discipline and providing useful information to school resource officers, we can keep America's young people safe and on the right path."

The centerpiece of the materials the federal departments released Wednesday is the guidance, found in a "Dear Colleague" letter that outlines schools' obligations to fair and nondiscriminatory discipline under the Civil Rights Act and details what investigators would use to determine if a complaint of discriminatory discipline practice is valid. The agencies also released a directory of federal school climate and discipline resources, an online catalog of state-level school discipline laws and regulations, and a guide of "best practices" for policymakers and district leaders who seek to improve their policies.

The materials include snapshots of data related to how disciplinary measures affect certain racial groups:

"The Civil Rights Data Collection conducted by the [Education Department's Office of Civil Rights] has demonstrated that students of certain racial or ethnic groups tend to be disciplined more than their peers. Although African-American students represent 15 percent of students in the [data], they make up 35 percent of students suspended once, 44 percent of those suspended more than once, and 36 percent of students expelled. Further, over 50 percent of students who were involved in school-related arrests or referred to law enforcement are Hispanic or African-American.

The Departments recognize that disparities in student discipline rates in a school or district may be caused by a range of factors. However, research suggests that the substantial racial disparities of the kind reflected in the [civil rights] data are not explained by more frequent or more serious misbehavior by students of color."

The guidance recommends a focus on positive environments and prevention efforts; clear, appropriate, and consistent expectations and consequences; and continuous efforts to ensure equity.

Investigations

The agencies also assured educators Wednesday that they would continue to investigate allegations of Title IV and Title VI violations triggered by complaints from parents, students, and community members, and that they may also initiate investigations as part of regular compliance monitoring activities.

Examples included in the guidance demonstrated that there are times when schools may be justified in offering different punishments for two students who appear "similarly situated" apart from their race. For example, a Hispanic student who fought with a non-Hispanic peer may receive a harsher discipline if he or she threatens school leaders when they try to disrupt the fight.

But districts are also responsible for ensuring that fairly written rules are applied in a fair manner, the guidance says. For example, a district may violate the civil rights rules if it disproportionately suspends black students for "acting in a threatening manner" when white students engaging in comparable conduct, such as talking loudly in the hallway during class time or talking back to an adult, are flagged for offenses, such as "classroom disruption," that come with lighter punishments. That can be the case when the school's policies lack "a clear definition of the prohibited conduct" that can be fairly applied by all school officials, the guidance says.

"In addition to establishing a system for monitoring all disciplinary referrals, the school should have a system in place to ensure that staff who have the authority to refer students for discipline are properly trained to administer student discipline in a nondiscriminatory manner."

Schools found in violation of Title IV or Title VI will be subject to schoolwide or districtwide remedies, which could include correcting the records of students deemed to be unfairly punished, revising discipline policies, providing training for school personnel, and conducting an annual comprehensive review of school discipline practices.

National school groups and advocates for changes to school discipline policies have anticipated the new guidance for a long time. Here are some of their reactions.

American Federation of Teachers President Randi Weingarten: "What No Child Left Behind did, as zero-tolerance policies did, was shine a light on a problem but solve it with sanctions instead of supports. That cannot continue. The federal government made many positive suggestions, but policies in a vacuum without actual resources and support will not succeed."

Thena Robinson-Mock, project director for the Advancement Project's Ending the Schoolhouse-to-Jailhouse Track Campaign: "Fair and equitable school discipline policies promote school safety and are not incompatible with school safety, as some have wrongly claimed. The release of the DOJ/DOE guidelines is a watershed moment for us all."

Kenneth S. Trump, the president of National School Safety and Security Services: "While there are legitimate issues on suspensions, expulsions, and arrests, will politicizing it push the pendulum to an extreme that will result in increased discipline problems and school crimes because administrators are more focused on keeping their numbers down and staying out of the federal crosshairs? Will educators solve the numbers problem but not deal with the behavior and crime problems behind this issue?"

Sherrilyn Ifill, the president and director-counsel of the NAACP Legal Defense and Educational Fund: "These much-needed guidelines send a strong message from the federal government that it takes seriously the criminalization of children, particularly children of color, in schools. It acknowledges that race plays an improper role in school discipline practices with long-term negative consequences for students' educational outcomes."

Deborah J. Vagins, American Civil Liberties Union senior legislative counsel: "Today, the federal government has issued groundbreaking guidance that will help all school districts end misguided, discriminatory school discipline policies. This guidance makes it crystal clear for schools what their obligations are under our civil rights laws and provides examples of best practices so that they can easily implement positive alternative practices. This is a victory for all who care about creating environments where students can thrive."

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